I was towing a large trailer on the left hand lane of dual carriageway. I had to overtake a slow agricultural vehicle. Driving at 60mph, I was almost completely in the centre of the right hand lane, when I noticed a car going extremely quckly approaching from behind. With a trailer, there was not much I could do in the way of evasive action and he plowed into me.

I have an extremely credible independant witness that states the other car was going at excessive speed and with no awareness of me (despite me towing a large trailer). He saw the break lights flash just before impact. The driver of the other car even apologised to me and said he had not seen me - Anyone who tows, knows I could not have just veered infront of him.

My own insurance company is stating that as I had not yet established myself in my new lane, they have to accept liability on my behalf. They say if it went to court, I would be to blame.

Despite feeling like a victim, I have just one question of anyone who has any expertise in this area.

Are the insurance company correct in their view that highway code 133 (a change of lane should not force other road users to change course or speed) takes precedence over 137 (you should not just sit in the right hand lane), 144 (you must not drive dangerously or without due care or attention), 124 (not be excessively speeding) and 146 (Adapt driving for conditions)

Their view is that the speed the car behind was travelling at cannot be proved and is therefore irrelevant.

I understand why there is a responsibility to check the lane is clear before changing, but to deem the conduct of the vehicle behind clear of all responsibility frankly astonishes me.

If you have an independent witness who is willing to say you were established in the lane and that the other parties speed was excessive your insurance provider should take this into account.

I would also ask the Police to speak to your witness and pursue a 'driving without due care and attention' case against the other party (this will add more weight to your case).

We had a claim a few months back. Guy in the right hand lane at a roundabout indicating right. We went into the left hand lane going straight ahead. We were pulling off the roundabout at our exit and he hits the side of our car. Pretty clear cut you would think. As we had no independent witness or CCTV (or dash cam footage) we had to accept 50% liability.

Your case if different and I would instruct your insurance co that you are not accepting their admission until full investigations are completed.

Insurance companies are very, very fond of thinking that they are the law, and that what they say is what will happen.

Ultimately, the job of the insurance company is to cover your loss in the event of an accident. It is not their job to decide who is to blame, though they will happily take it upon themselves to do so and unfortunately we usually tend to let them get away with it. Their preferred action generally in cases where doubt can be introduced is to partially blame both drivers, then both lose their no claims and both pay a full excess towards the costs. That way the insurance companies as a whole recoup their loss much more quickly.

The highway code is a useful guide as to what constitutes good or bad driving, but even that is not the law. In the first instance, as noted previously, you could take your good witness and approach the police about the possibility of the prosecuting the other driver for due care and attention, or even do so yourself, though that would be somewhat unusual!

The other, more realistic path to take here is to go and talk to a decent motoring solicitor about the likelyhood of winning the case if you take a civil action out against the other driver. This probably swings massively on the credibility of the witness. From what you've said I'd actually have expected most courts would tend to veer more towards the other driver being to blame, and if your witness really does back this up with credible evidence you'd think your case would be pretty strong.

You may have legal cover on your insurance but on the one occasion I tried using this I found that they were worse than useless as they will only take on cases where they think winning is a 100% certainty, ie the ones where you would win your costs back anyway! I've never bought it since...

So if you went to court and won, you'd get your costs back and your insurance would have no claim to pay so you wouldn't lose NCD or have to pay an excess. But if you lose it would cost you the legal expenses and possibly the other drivers. In theory your insurance ought to cover that but they would argue that you incurred that expense by ignoring their advice.

So it all swings on how good you think your case is. As I say, ask a solicitor but bear in mind they are quite likely to paint an optimistic picture of success so as to get the work, so ultimately it has to be your call...

Ultimately, the job of the insurance company is to cover your loss in the event of an accident. It is not their job to decide who is to blame, though they will happily take it upon themselves to do so and unfortunately we usually tend to let them get away with it.

Surely, in many cases that isexactly their job - where the police have not been involved?

Back to the original question - did the front of the car hit the back of the trailer - not the side? If so, I'd have thought the presumption of liability should be with the driver of the car behind - unless there is clear evidence that you have pulled out dangerously.

I have to say having read this that it sounds like you did not pull out safely and instead should have slowed behind the slow moving traffic ahead. Having said that I was not there so I will not hold you to that. I have had some bad experiences with insurance companies in the past, one in particular named after a large animal with a long trunk. In fact what your insurance company are doing is very similar to what my insurance company did to me, accusing you of driving without due care and attention, they are not legally allowed to do this as it is a crime to drive without due care and attention and only the police or a court can do this. My advice, speak to the financial ombudsman services, its free, tell your insurance you are doing so, write down names of every member of staff you speak to, tell them you are taking notes. They respond better to people who keep all the information and are speaking to an external body. You pay them to represent you in these sorts of situations and it is in their best interest not to pay out for you. Well in theory, it could be that the other driver is with the same company and by splitting a claim they can destroy two drivers no claims discount in one hit and get a bigger premium next year. I have heard of this being done before!

So I became very familiar with highway code as a result of this. Unless I can prove the speed he was going at (which I cannot), it is impossible for me to demonstrate the other guy was in the wrong (It seems my extremely coherent witness is irrelevant).

In answer to the earlier post, the impact was directly from behind and the witness was unambiguous that the other guy was going extremely fast and did not seem to be paying attention.

I am still of the opinion that I began a manouvre into a clear lane and this status only changed because the other car was going so fast. That being said, there is highway code rule that says you should not change lane if it causes any other vehicles to change their speed.

My insurance company are of the view that this trumps an impossible to prove speeding accusation, an obligation to be considerate of other road users, the obligation that the second lane is for overtaking only and the requirement to pay attention while driving.

On this basis, the best I could hope for was a conclusion that shares the blame which still ruins my no-claims. I therefore just dropped the complaint.

With this new understanding of obligations on the road, I can tell you that towing a trailer on a two lane dual carriageway is extremely difficult. Not to apply the rule, but because the difference between 60mph and the speed other drivers are prepared to drive at, is so difficult to accomadate for.

In my particular situation, if you slow to the speed of a tractor and wait for a gap, this difference is even greater. The other option is to accelerate like mad (faster than 60mph) and get the manouvre over and done with.

Like I say - driving with a trailer is now a whole heap more difficult.

But the bottom line is that this is about being taken for a ride by an insurance company. If this went to court and a coherent, independent witness gave evidence that you had pulled out safely with plenty of room, and that [some reasonable time later] a following driver ran into the back of you, with a sensible estimate of his approach speed and lack of reaction; then it seems very highly likely to me that the court would come down entirely in your favour.

Yes, the Highway code says you should not cause another vehicle to have to take avoiding action, but in the first instance remember that the Highway code is not actually law, and in the second instance there is a a degree of common sense that needs to be applied. If a vehicle not in sight at the time approached five minutes later and had to slow down behind you then this too would breach this rule, which clearly is neither reasonable nor even possible for you to allow for.

So what would happen is that his defence would be that you pulled out unreasonably late and (as per highway code rule) left him unable to avoid an accident. Your defence would be all the other points that you listed above.

So you could take the other driver to court yourself, but you'd either have to pay a solicitor or do a lot of prep yourself, or persuade your legal protection insurance to take it on, which is unlikely. Or perhaps you could approach the insurance ombudsman and complain about the way you have been treated. I concur with the point made above - this seems highly likely to be the usual con trick of insurance companies working in their own best interests, and I bet the other driver ends up losing his no claims bonus too, having possibly been told a subtly different version of events which leaves him too apparently partially liable.

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